It’s all too tempting: you’re sure that your (former) spouse has financial assets that they have failed to disclose but you can’t prove it, so you ‘help yourself’ to their papers, to find the evidence. A recent case from Northern Ireland gives a further indication of how many people give in to that temptation, and also confirms that it is a futile exercise.
In Peacock v Peacock the actions of the husband were particularly egregious, as the judge found that the probability was that he had purposely engineered a presence in the wife’s home some years after the divorce by offering to do some decorating, in order to search for documents there. His subsequent removal of documents belonging to the wife amounted, in the view of the judge, to stealing.
The facts of the case were as follows. The parties were married in 2003 and separated in 2008. On 18 April 2008 they reached an agreement regarding their finances, and the agreement was incorporated into a consent order in February 2010. After the divorce, the parties, it seems, remained on reasonably good terms and in 2014/15, whilst decorating the wife’s house, the husband found documentation which he claimed indicated that the wife’s income was greater than she had disclosed when the consent order was made. He therefore applied to the court to have the consent order set aside, so that he could seek a better financial settlement.
The application went before Mr Justice O’Hara in the High Court of Northern Ireland. He had two issues to decide: firstly, whether the case fell within the principles of the case Barder v Barder, in that an event had occurred since the making of the consent order which undermined the whole basis upon which the order was made; and secondly, whether the husband could rely upon the financial documents which he removed without the wife’s permission from her home.
As to the Barder point, O’Hara J found that there was “no arguable case that since the making of the order in February 2010 there has ever been a new event which invalidates the basis or fundamental assumption on which the order was made.” Even if there was, there was no new event within a relatively short time of the 2010 order being made, as required by Barder, and further Barder also required that the application to set aside should be made reasonably promptly, but here the husband made the application five years after the consent order.
The second point relates to the rule set out in the Imerman case, to which I referred here recently, i.e. that parties were not entitled to ‘purloin’ confidential documents belonging to their spouse, and that if they did they could not use any information gained from the documents in the proceedings. The husband claimed that he did not steal the documents, as he had not forced entry to the property. However, as indicated above, O’Hara J did not see things this way. He said:
“The unavoidable conclusion is that he cannot be allowed to rely on those documents in the current proceedings if the decision of the Court of Appeal in Imerman is to be respected at all. While the documents were apparently not under lock and key, they do not have to be. They were in a private home. The owner of that home had a right to privacy. If the removal was not wrong, why did Mr Peacock not just ask Mrs Peacock what papers she had, whether he could look at them and whether he could then take them away? The only rational conclusion is that he knew he was acting unlawfully (to put it politely). There are no special circumstances here which justify him in having done so and then relying on those documents. Accordingly I hold that the documents removed by Mr Peacock cannot be relied on by him in these proceedings for any purpose.”
In the circumstances the husband’s application was dismissed.
The full report of Peacock v Peacock can be found here.